Here’s another implication of Chief Justice John Roberts’ ruling on the Patient Protection and Affordable Care Act, courtesy of The Wall Street Journal.
According to Chief Justice Roberts, the penalty is merely a tax on not owning health insurance, no different from “buying gasoline or earning income,” and it thus complies with the Constitution. This a large loophole. The result is that Washington has unlimited power to impose new purchase mandates and the courts will find them constitutional if Congress calls them taxes, or even if it calls them something else and judges call them taxes.
Except that not buying a thing or a service is radically different from buying that thing or service. This isn’t merely a matter of opposites: opposites are related to each other. There is no relation between buying or not buying—the thing/service being bought is known; the thing/service not being bought cannot be known, and so the bought/not bought functions can have no relation to each other whatsoever.
Chief Justice Roberts writes that construing the Commerce Clause as the Obama Administration argued “would open a new and potentially vast domain to congressional authority…. The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding.” [emphasis in the original]
But then
Supreme Court precedents going back to the 1920s and 1930s define penalties and taxes as mutually exclusive and critically different.
With this stroke, Roberts has cancelled the effect of his understanding on the limit of the Commerce Clause’s ability to compel commerce; he has simply transferred the ability to compel commerce to the Taxing Clause. Which also had no prior compulsion power.
Whether the Federal government may compel our behavior via Commerce or via Taxing, our government now can compel our behavior.
This is judicial activism at its worst.